22 C.F.R. § 128.1

Exclusion of functions from the Administrative Procedure Act

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The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act.

[87 FR 16425, Mar. 23, 2022]

Notes of Decisions

Cited in 6 cases, 2006–2020 · leading case: Def. Distributed v. United States Dep't of State, 838 F.3d 451 (5th Cir. 2016).

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Def. Distributed v. United States Dep't of State, 838 F.3d 451 (5th Cir. 2016). · cites it 4× “§ 2778 (h); 22 C.F.R. § 128.1 . 8 ' Should the DDTC determine, as here, that technical data are subject to the ITAR, an “export” license is required before the information may be posted online.”

Stagg, P.C. v. U.S. Dept. of State, 983 F.3d 589 (2d Cir. 2020). “22 C.F.R. § 128.1 . 3 Focusing largely on the unlimited discretion afforded by the standard 4 “or is otherwise advisable,” as well as the lack of procedural safeguards (such 5 as judicial review) to reduce the danger of abuse of that discretion, Stagg 6 seeks a declaratory…”

United States ex rel. McGrath v. Microsemi Corp., 140 F. Supp. 3d 885 (D. Ariz. 2015). · cites it 2× “” 22 C.F.R. § 128.1 . Therefore, persons who violate AECA* or the regulations promulgated thereunder, such as ITAR, are subject to debarment, suspension or ineligibility.”

Stagg P.C. v. U.S. Dep't of State, 158 F. Supp. 3d 203 (S.D.N.Y. 2016). “See 22 C.F.R. § 128.1 . . See 22 U.S.C. § 2778 (c); 22 C.”

U.S. Ordnance, Inc. v. U.S. Dep't of State, 432 F. Supp. 2d 94 (D.D.C. 2006). “See 22 C.F.R. § 128.1 . (Defs.’ Mem. at 9.) The Department also, on March 10, 2006, formally denied all of plaintiffs pending license applications.”

State of Washington v. United States Dep't of State (W.D. Wash. 2020). “3 The federal defendants argue that 22 C.F.R. § 128.1 , an AECA regulation, 4 demonstrates that the exemption applies.”

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